it was not adequate for appellant to raise his weight of the evidence claim in a statement of matters complained of on appeal because an election to file an immediate appeal rather than a post-sentence motion strips the trial court of jurisdiction to act on the case
How later courts described this case
- it was not adequate for appellant to raise his weight of the evidence claim in a statement of matters complained of on appeal because an election to file an immediate appeal rather than a post-sentence motion strips the trial court of jurisdiction to act on the case
Written by the judges who cited it.
The opinion
CAVANAUGH, Judge,
dissenting:
While I do not disagree with the reasoning of the majority, I would favor an alternative, less orthodox, disposition of this appeal. I would do so in recognition of the following factors:
1. The instant verdict was rendered within months after the effective date of Pa.R.Crim.P. 1410 which provided for a new and radically different procedural methodology in handling post-verdict appeals.
2. In Pennsylvania weight of the evidence arguments are almost exclusively for the trial judge to decide, and are otherwise, as a practical matter, non-reviewable.
*433 3. The trial court has articulated in no uncertain terms, a declaration that, if properly presented, he would grant appellant a new trial on the claim that the jury verdict was against the weight of the evidence.
4. The appeal route taken by appellant’s counsel, while not involving waiver in the traditional sense, certainly is tantamount to waiver.
5. The efficiencies which inspired Rule 1410 were not intended to facilitate the de facto waiver of meritorious issues.
6. The present disposition is a script for an all but certain meritorious plea for post conviction collateral relief.
7. I agree with the majority disposition of the Commonwealth’s appeal.
Accordingly, I would vacate the sentence and remand this case for the resubmission of post-verdict motions nunc pro tunc.